Karnataka High Court
Dr. Nitin Kumar vs The State Of Karnataka on 30 August, 2025
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NC: 2025:KHC-K:5019
CRL.P No. 200626 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF AUGUST, 2025
BEFORE
THE HON'BLE MRS. JUSTICE M.G. UMA
CRIMINAL PETITION NO. 200626 OF 2025
(482(Cr.PC)/528(BNSS))
BETWEEN:
1. DR. NITIN KUMAR
S/O BREEJMOHAN AGARWAL,
AGE: 44 YERAS, OCC: DOCTOR,
R/O. K.K. COLONY,
BASAVANA BAGEWADI ROAD,
AYUSH HOSPITAL,
VIJAYAPURA-586 101.
2. SHRISHAIL S/O DYAMAPPA TAMMAGOND,
Digitally signed AGE: 59 YEARS, OCC: DOCTOR,
by SUMITRA
SHERIGAR R/O. HITNALLI,
Location: HIGH TQ. & DIST.VIJAYAPURA-586 101.
COURT OF ...PETITIONERS
KARNATAKA
(BY SRI SANJAY A. PATIL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
R/BY CIRCLE POLICE INSPECTOR,
JALANAGAR POLICE STATION,
NEAR IBHRAHIMPUR RAILWAY STATION,
VIJAYAPURA - 586 101,
THROUGH ADDL. SPP,
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NC: 2025:KHC-K:5019
CRL.P No. 200626 of 2025
HC-KAR
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH - 585 103.
2. SHAIK AZMATHULLA S/O RAHAMATHULLA,
AGE: 38 YEARS, OCC: NIL
R/O. NO.12/75, S.NO.PLOT GUNTAKAL-515 801,
ANANTAPUR DIST.,
ANDHRA PRADESH.
...RESPONDENTS
(BY SRI JAMADAR SHAHABUDDIN, HCGP, FOR R1;
R2-SERVED BUT UN-REPRESENTED)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C.(OLD)/528 OF BNSS, PRAYING TO QUASH
CHARGE-SHEET DATED 19.01.2025 (JALANAGAR P.S.
CR.NO.93/2023) AND ALSO SUMMONING ORDER DATED
14.02.2025 PASSED BY III ADDL. SENIOR CIVIL JUDGE
AND JMFC COURT, VIJAYAPURA, IN C.C. NO.99/2025 FOR
THE OFFENCES PUNISHABLE UNDER SECTION 302, 201,
202 R/W. SECTION 34 OF IPC AGAINST THE
PETITIONERS.
THIS PETITION, COMING ON FOR ADMISSION, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MRS. JUSTICE M.G. UMA
ORAL ORDER
(PER: HON'BLE MRS. JUSTICE M.G. UMA) The petitioners being accused Nos.4 and 5 in Crime No.93/2023 of Jalanagar Police Station, now pending in -3- NC: 2025:KHC-K:5019 CRL.P No. 200626 of 2025 HC-KAR C.C. No.99/2025 on the file of the learned III Additional Senior Civil Judge and J.M.F.C., Vijayapura, registered for the offences punishable under Sections 302, 201, 202 read with Section 34 of IPC, are seeking to quash criminal proceedings initiated against them.
2. Facts of the case in brief are that, respondent No.2 being informant lodged the first information with Jalanagar Police Station against accused Nos.1 to 3 alleging commission of the offence punishable under Section 302, 201 read with Section 34 of IPC. It is stated that, the deceased is informant's paternal uncle and he suspected that accused Nos.1 to 3 might have caused his death and buried the dead body in a suspicious manner. Respondent No.2 noted few injuries on the dead body and suspected that, he might have been murdered. Therefore, he requested the Police to register the case and investigate the matter.
3. Accordingly, FIR came to be registered against accused Nos.1 to 3. The dead body was exhumed and -4- NC: 2025:KHC-K:5019 CRL.P No. 200626 of 2025 HC-KAR subjected to post mortem examination. As per the post mortem report, death of the deceased was due to asphyxia, resulting from ligature strangulation associated with the manual throttling. During investigation, it was found that, there was dispute between the deceased and accused Nos.1 to 3 in the matter of the property held by the deceased. As a result of which accused Nos.1 to 3 assaulted him. Accused Nos.2 to 3 said to have caught hold of the deceased while accused No.1 strangulated his neck with plastic rope and also with hands, which resulted in his death. Accused Nos.1 to 3 proclaimed that the deceased had fallen down in the bathroom and was shifted to the hospital. The petitioners being the Doctors examined him and declared that he was brought dead. The dead body was handed over to accused No.3. Accused Nos.1 to 3 have taken the dead body and buried it. However, accused Nos.4 and 5 being Doctors in the Hospital, have not informed the fact to the Police that the dead body was brought to the Hospital. Therefore, the -5- NC: 2025:KHC-K:5019 CRL.P No. 200626 of 2025 HC-KAR final report came to be filed against accused Nos.1 to 3 for the offences punishable under Sections 302 and 201 read with Section 34 of IPC and against accused Nos.4 and 5 for the offence punishable under Section 202 of IPC. Accused Nos.4 and 5 are before this Court seeking to quash the criminal proceeding initiated against them.
4. Heard Sri. Sanjay A. Patil, learned counsel for the petitioners and Sri. Jamadar Shahabuddin, learned High Court Government Pleader for the respondent - State. Perused the materials on record.
5. In view of the rival contentions urged by the learned counsels for both the parties, the point that would arise for my consideration is:
"Whether the criminal proceedings initiated against the petitioners is liable to be quashed invoking inherent power under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023?"-6-
NC: 2025:KHC-K:5019 CRL.P No. 200626 of 2025 HC-KAR
6. My answer to the above point is in 'Affirmative' for the following:
REASONS
7. It is the specific contention of the prosecution that accused Nos.1 to 3 have caused the death of deceased by strangulating his neck with the plastic rope and also manually throttling him. They have also caused disappearance of the evidence of committing the offence. The dead body was brought to the Hospital with a false history that he had fallen down in the bathroom. On examination, accused Nos.4 and 5 declared him as brought dead and handed over the dead body to accused No.3, upon which accused Nos.1 to 3 have buried the dead body in Hyderabad. Therefore, the offences alleged against accused Nos.1 to 3 are under Sections 302 and 201 read with Section 34 of IPC, while the allegation against accused Nos.4 and 5 is only under Section 202 of IPC. However, a common charge-sheet came to be filed and learned Magistrate took cognizance of the offences. -7-
NC: 2025:KHC-K:5019 CRL.P No. 200626 of 2025 HC-KAR
8. Now, it is the contention of the learned counsel for the petitioners that Section 202 of IPC which is applicable to the present petitioners is a non-cognizable and bailable offence. It is distinct from the offences under Sections 302 and 201 of IPC alleged against accused Nos.1 to 3. The procedure as contemplated under Section 155 of Cr.P.C., was not followed by the Investigating Officer and therefore, the criminal proceedings initiated against these petitioners needs to be quashed. He placed reliance on the decision of the Hon'ble Apex Court in Harishchandrasing Sajjansing Rathod and Another Vs. The State of Gujarat1, where the Hon'ble Apex Court considered the case which has ended in acquittal after a full fledged trial, and held in paragraph No.4 as under;
(4) To sustain a conviction under the above quoted S. 202 of the Penal Code, it is necessary for the prosecution to prove (1) that the accused had knowledge or reason to believe that some offence had been committed, (2) that the accused had intentionally omitted to give information respecting that offence and (3) that 1 AIR 1979 SC 1232 -8- NC: 2025:KHC-K:5019 CRL.P No. 200626 of 2025 HC-KAR the accused was legally bound to give that information. We have gone through the entire evidence bearing on the aforesaid offence under Section 202 of the Penal Code but have not been able to discern anything therein which may go to establish the aforesaid ingredients of the offence under S. 202 of the Penal Code. The offence in respect of which the appellants were indicted viz. having intentionally omitted to give information respecting an offence which he is legally bound to give, not having been established, the appellants could not have been convicted under S. 202 of the Penal Code. It is well settled that in a prosecution under Section 202 of the Penal Code, it is necessary for the prosecution to establish the main offence before making a person liable under this section. The offence under S. 304 (Part II) and the one under S. 331 of the Penal Code not having been established on account of several infirmities, it is difficult to sustain the conviction of the appellants under S. 202 of the Penal Code. The High Court has also missed to notice that the word 'whoever' occurring at the opening part of S. 202 of the Penal Code refers to a person other than the offender and has no application to the person who is alleged to have committed the principal offence. This is so because there is no law which casts a duty on a criminal to give information which would incriminate himself. That apart the aforementioned ingredients of the offence under Sec. 202 of the Penal Code do not appear to have been made out against the prosecution. There is not an iota of evidence to show that the appellants knew or had reason to believe that the aforesaid main offences had been committed.
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NC: 2025:KHC-K:5019 CRL.P No. 200626 of 2025 HC-KAR After these observations, the Hon'ble Apex Court acquitted the accused for the offence punishable under Section 202 of IPC.
9. Learned counsel has also placed reliance on the decision of in Father Madalaimuthu Vs. State of Kerala,2 where the charge-sheet came to be filed against the accused for the offences punishable under Sections 306, 376, 201 and 202 read with Section 149 of IPC and the offences under Sections 376, 306 and 201 was against the main accused, while the offence under Section 202 of IPC was against the petitioners, before the co-ordinate Bench of the Kerala High Court, who have sought for quashing the criminal proceedings. The Court held that, the offence alleged under Section 202 of IPC against the petitioner therein is a separate and distinct non-cognizable offence triable by the Magistrate. Therefore, the investigation of the said offence can be conducted by the Police only after getting permission from the Magistrate as 2 2024 KER 73127
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NC: 2025:KHC-K:5019 CRL.P No. 200626 of 2025 HC-KAR provided under Section 155(2) of Cr.P.C., and accordingly, the criminal proceedings was quashed.
10. In the facts of the present case, it is clear that the offence alleged against accused Nos.1 to 3 are under Section 302 and 201 read with Section 34 of IPC, while the offence alleged against the present petitioners being accused Nos.4 and 5 is under Section 202 of IPC. Therefore, the offence alleged against the petitioners is distinct and separate and un-connected with the offence alleged against accused Nos.1 to 3. Similarly, accused Nos.1 to 3 are also not connected to the offence under Section 202 of IPC. Under such circumstances, I am of the opinion that, separate FIR should have been registered against the present petitioners for the offence punishable under Section 202 of IPC, after following the procedure as contemplated under Section 155(2) of Cr.P.C. Since, there is a serious lapse in the procedure adopted by the Investigating Officer, I am of the opinion, that the criminal proceedings initiated against the petitioners is liable to be
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NC: 2025:KHC-K:5019 CRL.P No. 200626 of 2025 HC-KAR quashed. However, in the ends of justice, liberty may be reserved in favour of the prosecution to follow the procedure and to register a separate FIR afresh against these petitioners in accordance with law.
11. In view of the above, I answer the above point in the Affirmative and proceed to pass the following:
ORDER
i) The petition is allowed.
ii) Criminal proceedings initiated against the petitioners/accused Nos.4 and 5, in C.C.No.99/2025 on the file of the learned III Addl. Senior Civil Judge and JMFC Court, Vijayapura, in Crime No.93/2023 of Jalanagar Police Station, registered for the offence punishable under Section of IPC, is hereby quashed.
iii) Liberty is reserved in favour of the prosecution to register a separate FIR against the present
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NC: 2025:KHC-K:5019 CRL.P No. 200626 of 2025 HC-KAR petitioners in accordance with law, if the same is permissible.
Sd/-
(M.G. UMA) JUDGE SBS,MSR List No.: 1 Sl No.: 30 CT:PK